State v. Brian D. Frazier

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 1, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2019AP2120-CR Cir. Ct. No. 2011CF489

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

BRIAN D. FRAZIER,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Columbia County: ALAN J. WHITE and TODD J. HEPLER, Judges. Affirmed.

Before Fitzpatrick, P.J., Blanchard, and Graham, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2019AP2120-CR

¶1 PER CURIAM. Brian Frazier appeals a judgment of conviction and
an order denying his postconviction motion for plea withdrawal based on
ineffective assistance of trial counsel. Frazier claims that his counsel was
constitutionally ineffective in advising him to accept the State’s offer and to enter
pleas of no contest to charges of child sexual assault and intentional physical
abuse of a child. Frazier contends that counsel performed deficiently by advising
Frazier that he did not have a viable motion to suppress his confession to police,
and that Frazier was prejudiced because he relied on this advice in deciding to
accept the plea offer that he would not have accepted if he had known that he had
a viable suppression motion. We conclude that Frazier has not shown that a
manifest injustice would result from not allowing him to withdraw the pleas.
More specifically, we assume without deciding that trial counsel performed
deficiently, and conclude that the circuit court did not clearly err in implicitly
finding that Frazier was not credible in briefly testifying at a Machner1 hearing
that he was allegedly prejudiced. Accordingly, we affirm the circuit court decision
denying his postconviction motion.

BACKGROUND

¶2 Frazier was charged with first-degree sexual assault of a child as
sexual intercourse with a person under the age of twelve, in violation of WIS.
STAT. § 948.02(1)(b) (2019-20), and physical abuse of a child, in violation of WIS.
STAT. § 948.03(2)(b).2 The criminal complaint included the following allegations:
1
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
2
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted. Although the acts giving rise to the charged offenses date back to 2010-11, we cite to the
most current versions of the pertinent statutes because neither party suggests that any material
changes have been made since then.

2
No. 2019AP2120-CR

a seven-year-old boy reported in December 2011 that Frazier had sexually
assaulted the boy when he was six and that Frazier had physically assaulted him
more recently; police then interrogated Frazier, who confessed to both offenses;
police executed a search warrant and, after applying luminol to Frazier’s bed,
discovered a large circular area indicating the possible presence of blood,
consistent with the boy’s account that the sexual assault had occurred on Frazier’s
bed and that the boy had bled as a result of the sexual assault; a teacher at the
boy’s school said that the boy had a “sore on the inside of his mouth” and told the
teacher that Frazier had “smacked him on the face” at around the time that the boy
alleged that Frazier had physically assaulted him.

¶3 In addition to the two offenses initially charged, referenced above,
the State filed an amended information that included a third offense: first-degree
sexual assault as sexual contact with a person under thirteen years of age, in
violation of WIS. STAT. § 948.02(1)(e).

¶4 Trial counsel did not file a motion to suppress evidence. Pursuant to
a plea agreement, the State dismissed the initially charged child sexual assault
(violation of WIS. STAT. § 948.02(1)(b)) and Frazier entered pleas of no contest to
the newly added sexual assault in violation of § 948.02(1)(e) and the initial charge
of physical abuse of a child (violation of WIS. STAT. § 948.03(2)(b)).3

3
The Honorable Alan J. White accepted Frazier’s pleas, entered the judgment of
conviction, and denied both Frazier’s initial postconviction motion based on a challenge under the
standards articulated in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and Frazier’s
second postconviction motion for plea withdrawal based on ineffective assistance of trial counsel
related to failure to advise Frazier to pursue suppression of his confession. After appellate
reversal of the decision to deny the second postconviction motion, on remand the Honorable
Todd J. Hepler entered the order denying the second postconviction motion that Frazier now
appeals in this direct appeal under WIS. STAT. § 809.30.

3
No. 2019AP2120-CR

¶5 Represented by appointed counsel different than trial counsel,
Attorney Tristan Breedlove, Frazier filed a postconviction motion to withdraw his
pleas in September 2014. Frazier argued that his pleas were not knowing,
intelligent, and voluntary because the circuit court at the plea hearing had failed to
ascertain Frazier’s understanding of the elements of first-degree sexual assault by
sexual contact and at the time of the plea Frazier did not understand the legal
definition of sexual contact (“the Bangert issue”). See State v. Bangert, 131
Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986) (if a defendant seeking plea
withdrawal can identify a plea colloquy deficiency and alleges that he or she did
not know or understand the information that should have been provided in the
colloquy, the burden shifts to the State to show by clear and convincing evidence
that the defendant’s plea was made knowingly, intelligently, and voluntarily).

¶6 In October 2014, Attorney Andrew Hinkel substituted for Attorney
Breedlove as Frazier’s postconviction counsel, and Attorney Hinkel continued to
pursue the Bangert issue on Frazier’s behalf.

¶7 The circuit court held an evidentiary hearing on the Bangert issue in
February 2015. After the hearing, the court concluded that Frazier had understood
the meaning of sexual contact at the time of the plea and on that basis the court
denied the postconviction motion in May 2015.

¶8 Shortly thereafter, Attorney Hinkel filed a notice of appeal on
Frazier’s behalf, stating that he would be submitting a no-merit report.4 However,

4
See WIS. STAT. § 809.32 (setting forth no-merit procedure: appointed counsel
examines the record for potential appellate issues of arguable merit; the defendant has the
opportunity to respond to the no-merit report and raise additional issues; and the appellate court
examines the no-merit report and also conducts its own scrutiny of the record to see if there are
(continued)

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No. 2019AP2120-CR

the no-merit appeal process was interrupted in July 2016, when Attorney Hinkel
moved this court to dismiss it and to reinstate the timeline for a direct appeal under
WIS. STAT. § 809.30. Attorney Hinkel explained that he had identified a non-
frivolous issue to pursue, different from the Bangert issue: that trial counsel had
provided ineffective assistance by advising Frazier that a motion to suppress his
confession was not viable. In October 2016, this court granted Attorney Hinkel’s
motion on Frazier’s behalf to dismiss the no-merit appeal and extended the time to
file a supplemental postconviction motion.

¶9 In November 2016, Frazier was appointed new counsel, who
remains his counsel to date. In February 2017, Frazier pursued a supplemental
postconviction motion raising ineffective assistance of trial counsel. The motion
contended that trial counsel was ineffective in failing to advise Frazier to pursue a
motion to suppress his confession, and that Frazier was entitled to an evidentiary
hearing at which he would prove that he was entitled to withdraw his pleas based
on ineffective assistance. More specifically regarding the ineffective assistance
claim, Frazier contended that, at the time of his confession, he was in custody and
had not been advised of his Miranda5 rights and that for this reason a suppression
motion would have had merit. See State v. Lonkoski, 2013 WI 30, ¶23, 346
Wis. 2d 523, 828 N.W.2d 552 (law enforcement may not subject a person to a
custodial interrogation until that person is given Miranda warnings; incriminating
statements obtained in violation of Miranda must be suppressed).

any potential appellate issues with arguable merit and then addresses in a decision the potential
appellate issues and explains, if appropriate, why each has no arguable merit).
5
See Miranda v. Arizona, 384 U.S. 436 (1966).

5
No. 2019AP2120-CR

¶10 The circuit court denied the motion on the Miranda issue without
holding a hearing in June 2017. The court concluded that Frazier was not in
custody at the time of the confession. On appeal, we reversed the circuit court
order. State v. Frazier, No. 2017AP1249-CR, unpublished slip op. (WI App
Aug. 2, 2018). We concluded that Frazier was in custody when he confessed. We
further concluded that the State had not disputed that, if Frazier was in custody
when he gave his confession, trial counsel performed deficiently in connection
with Frazier’s decision to enter a plea. Based on this, we determined that remand
was necessary for the circuit court to hold a hearing limited to the issue of whether
Frazier was prejudiced by his counsel’s deficient performance. Id., ¶¶26-36.

¶11 Our supreme court accepted the State’s petition for review and
summarily vacated our decision, remanding to the circuit court for a hearing on
both prongs of Frazier’s ineffective assistance of counsel claim. On remand, the
circuit court held a Machner hearing in May 2019, at which Frazier, his trial
counsel, and Attorney Hinkel testified.

¶12 Frazier testified at the Machner hearing that he discussed the
suppression issue with trial counsel before he accepted the plea deal and entered
his pleas. The following is the entirety of his testimony about his pre-plea
consideration of this issue:

Q. Did [trial counsel] advise you that you could not
suppress that statement?

A. Yes.

Q. At that time, did you believe that [trial counsel] was
correct in that issue?

A. Yeah, I do.

Q. Was that one of the reasons why you entered your plea?

6
No. 2019AP2120-CR

A. Yes.

Q. If you could have—if you had known that a suppression
motion could have been—a viable suppression motion
could have been filed to suppress your confession, would
you have made—entered into that plea deal with the State
of Wisconsin?

A. I would not.

Q. Would you have gone to trial at that point?

A. Yes.

¶13 Frazier’s trial counsel testified to the following. He considered
whether there was a basis for the circuit court to suppress Frazier’s confession, and
concluded that there was no viable motion to be pursued, based on his review of
the police interrogation. Counsel explained to Frazier, before Frazier accepted the
plea offer, counsel’s conclusion that there was no basis for suppression because
Frazier was not in custody at the time he made his confession. Frazier wanted to
seek suppression. If counsel had believed that there was a viable suppression issue
he would have encouraged Frazier to pursue it. The State’s plea offer was not
conditioned on Frazier not filing a suppression motion, and counsel believed that
filing a motion would not interfere with the substance of plea discussions.

¶14 Following the Machner hearing, the circuit court ruled in October
2019 that Frazier’s counsel was not ineffective and denied Frazier’s motion to
withdraw his plea. We discuss aspects of that decision in our discussion below.
Frazier appeals.

DISCUSSION

¶15 Frazier argues that his trial counsel performed deficiently by
advising him that he did not have a viable suppression motion before he accepted
the State’s plea offer because at the time of the confession he was in custody and

7
No. 2019AP2120-CR

had not been advised of his Miranda rights. Frazier further argues that he was
prejudiced by counsel’s erroneous advice because, had he known that he had a
viable suppression motion, he would not have accepted the plea offer, but instead
would have pursued suppression and then proceeded to trial without having to
contend with the confession as incriminating evidence.

¶16 The State responds with a series of arguments, but we address only
one because we conclude that it is dispositive. This is the argument that Frazier
did not show that he was prejudiced by trial counsel’s failure to give him
constitutionally effective advice regarding a potential suppression motion and
whether to take the plea offer. Assuming without deciding that trial counsel was
deficient in failing to advise Frazier that he had a viable suppression motion, we
conclude that the circuit court implicitly found that Frazier did not credibly testify
that he would not have accepted the plea offer from the State if trial counsel had
properly advised him on these issues. We further conclude that this implicit
finding was not clearly erroneous. For these reasons, Frazier failed to show a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have taken the case to trial.

¶17 We now provide the overarching plea withdrawal and ineffective
assistance of counsel standards, and then address the pertinent arguments of the
parties.

I. PRIMARY LEGAL STANDARDS

¶18 A defendant seeking plea withdrawal after sentencing, as here, “must
show by clear and convincing evidence that a refusal to allow withdrawal of the
plea would result in manifest injustice.” See State v. Dillard, 2014 WI 123, ¶83,
358 Wis. 2d 543, 859 N.W.2d 44. “[T]he ‘manifest injustice’ test is met if the

8
No. 2019AP2120-CR

defendant was denied the effective assistance of counsel.” State v. Bentley, 201
Wis. 2d 303, 311, 548 N.W.2d 50 (1996).

¶19 When a motion for plea withdrawal is premised on a claim of
ineffective assistance of counsel, the defendant must prove both that counsel’s
performance was deficient and that the defendant was prejudiced by the deficient
performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). We need not
address the required deficiency standard. In this context, to establish that he or she
was prejudiced by counsel’s deficient performance, a defendant must show that
“there is a reasonable probability that, but for counsel’s errors, [the defendant]
would not have pleaded guilty and would have insisted on going to trial.” Hill v.
Lockhart, 474 U.S. 52, 59 (1985); see also Strickland, 466 U.S. at 694 (“The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.”).
“A reasonable probability is a probability sufficient to undermine confidence in
[that] outcome.” Strickland, 466 U.S. at 694.

¶20 Both components of an ineffective assistance of counsel claim
present mixed issues of fact and law. Id. at 698. We uphold the circuit court’s
factual findings “‘concerning circumstances of the case and counsel’s conduct and
strategy’” unless those findings are clearly erroneous. State v. Silva, 2003 WI
App 191, ¶16, 266 Wis. 2d 906, 670 N.W.2d 385 (quoted source omitted).
However, whether counsel’s performance was deficient or prejudicial are each
questions of law that we review de novo. State v. Pitsch, 124 Wis. 2d 628, 634,
369 N.W.2d 711 (1985).

9
No. 2019AP2120-CR

II. ASSUMING THAT TRIAL COUNSEL WAS DEFICIENT,
FRAZIER FAILS TO SHOW PREJUDICE

¶21 One of the State’s arguments is that, even if trial counsel was
deficient in advising Frazier on the suppression issue, Frazier fails to show
prejudice. This is because, the State argues, in its written decision the circuit court
implicitly found that Frazier did not credibly testify at the Machner hearing that
he would have accepted the plea offer even if counsel had accurately informed
him that he had a viable suppression motion, and the circuit court’s implicit
finding was not clearly erroneous. For reasons we now explain, we assume
without deciding that counsel was deficient and agree with this argument by the
State.

¶22 We first address pertinent aspects of the circuit court’s decision
following the Machner hearing and then explain why we conclude that the court’s
implicit finding that Frazier’s testimony was not credible is not clearly erroneous,
addressing Frazier’s arguments to the contrary.

¶23 In its decision, the circuit court credited the testimony of trial
counsel that he considered the potential for a suppression motion, that he decided
that such a motion would lack merit, and that for this reason he advised Frazier
against moving to suppress. None of those facts are now disputed by the parties.

¶24 Not explicitly provided in the circuit court’s decision was a finding
on a critical question: Was Frazier credible in testifying at the Machner hearing
that, if he had known before entering his pleas that he had a viable suppression
motion, he would have declined the plea offer and insisted on a trial? This
question is critical because, as we have already indicated, Frazier cannot carry his
burden of showing prejudice unless he can show that, properly advised on the

10
No. 2019AP2120-CR

suppression issue, he would have insisted on a trial, see Hill, 474 U.S. at 59, and
we affirm circuit court credibility determinations regarding ineffective assistance
of counsel issues unless the determinations are clearly erroneous, see State v.
Domke, 2011 WI 95, ¶58, 337 Wis. 2d 268, 805 N.W.2d 364. Despite the absence
of an explicit finding regarding Frazier’s credibility on this topic, for reasons that
we now explain we agree with the State that the circuit court made an implicit
finding that Frazier was not credible and conclude that this finding was not clearly
erroneous.

¶25 In the first of two pertinent references in its decision, the circuit
court at a minimum conveyed skepticism about Frazier’s testimony in the
following way. The court noted Frazier’s testimony—that he would not have
accepted the plea offer if he had been aware that he had a viable suppression
issue—and then immediately and in the same paragraph commented that the State
could have presented at trial incriminating evidence separate from the confession.
This suggested the view that Frazier’s Machner hearing testimony failed to
acknowledge, much less properly account for, the obvious risk of the State
prevailing at trial even if it lacked the benefit of being able to offer the confession
as evidence.

¶26 Second, and more substantially, the court made the following
statement toward the end of the opinion:

A knowing, voluntary and intelligent decision was made by
Frazier to accept the State’s offer and plead to lesser
charges, rather than risk going to trial, even if the
confession were suppressed.

While perhaps expressed in an unclear manner, we construe this to represent a
finding that Frazier was not credible when he testified that he would not have

11
No. 2019AP2120-CR

accepted the plea offer if he had understood that he had a viable suppression
motion.

¶27 After the State argues that these references represent an implicit
finding that Frazier was not credible on this point, Frazier appears to concede that
the court made this implicit finding, but challenges the finding as clearly
erroneous because it was based on “faulty logic” and “an illusionary fact.” The
faulty or illusory premise, according to Frazier, was the court’s purported
assumption “that Frazier knew that his confession could have been suppressed
before he entered his plea.” This argument is not tenable, given the history of the
case and the entire contents of the court’s decision following the Machner
hearing. It is entirely implausible that the circuit court missed the fundamental,
uncontested fact that Frazier did not know at the time of his plea that he had what
we now assume was a viable suppression motion.

¶28 The following further supports our determination that the court
implicitly found Frazier incredible on this topic. We generally assume that a
circuit court made implicit factual findings supporting its decision regarding the
credibility of witnesses who provide testimony contrary to the court’s decision.
See State v. Echols, 175 Wis. 2d 653, 672-73, 499 N.W.2d 631 (1993); see also
State v. Quarzenski, 2007 WI App 212, ¶19, 305 Wis. 2d 525, 739 N.W.2d 844
(“To the extent the circuit court’s conclusions are rooted in the witnesses’
credibility, we will accept those determinations” and if the circuit court fails to
make “express” credibility findings, we assume that the court “made implicit
findings on a witness’s credibility when analyzing the evidence.”).

¶29 Yet another problem with Frazier’s position on this critical issue is
the sparse, entirely conclusory nature of Frazier’s testimony. As quoted above,

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No. 2019AP2120-CR

Frazier testified only “I would not,” in response to the single question as to
whether he would have accepted the plea offer if he had known he had a viable
suppression motion, and then answered “yes,” when asked if he “[w]ould … have
gone to trial at that point.”6 Frazier failed to describe a single factor that was on
his mind at the time he was deciding whether to accept the plea offer that weighed
in favor of going to trial, or of a single factor that weighed against accepting the
plea offer. This gave the circuit court the thinnest of grounds to credit his
testimony.7 The scant nature of Frazier testimony provides further support for our
conclusion that the court made the implicit finding that Frazier’s flat assertions
were not credible. The circuit court said little on this topic, but that appears to
have been due at least in part to the fact that Frazier himself said absolutely
nothing in his testimony about why he would have passed on the plea offer and
taken his chances at trial if he had known that he had a viable motion to suppress
the confession.8

6
Regarding this “gone to trial at that point” concept, Frazier argues exclusively that he
was prejudiced by trial counsel’s deficient performance because Frazier would have gone to trial
if he had been aware, before he entered his pleas, that he had a viable suppression motion. He did
not present the circuit court with evidence to support a position that, had he known before
entering the pleas that he had a viable suppression motion, he would have pursued a suppression
motion to a court ruling, and then evaluated his plea versus trial options, depending on the result
of the suppression proceedings and a possibly weakened evidentiary position for the State. Nor
does Frazier now on appeal suggest any argument along these lines. It is possible that the
analysis would be more complicated if Frazier had testified to some variation on that scenario, but
it does not matter, because the analysis here addresses the only argument Frazier has made in the
circuit court and in this appeal.
7
We need not address the State’s standalone arguments that we should affirm based on
the conclusory nature of the testimony alone and that we should conclude that “no reasonable
defendant would have rejected the State’s plea offer and opted to go to trial on these charges
simply if the confession had been suppressed.”
8
We ignore one apparent finding made by the circuit court for which we can find no
support in the record. The court suggested in its decision that the State’s plea offer was
contingent on Frazier not filing a suppression motion. No one at the Machner hearing testified
(continued)

13
No. 2019AP2120-CR

¶30 Frazier now asserts that his “confession was a major, if not the
primary, piece of evidence against Frazier,” and that the “obvious take away from
Frazier’s testimony is that there was a confession that would have doomed
Frazier’s chances at trial and that Frazier did not know that he could suppress it.”
But Frazier never testified about his view on any “obvious take away,” including
the one he now asserts on appeal, and the circuit court was left with unsupported
assertions, which it did not credit.

¶31 It is sufficient to resolve this appeal that the circuit court implicitly
found that Frazier was not credible on this topic and that this finding was not
clearly erroneous. However, we also note that trial counsel’s testimony at the
Machner hearing was largely limited to explaining aspects of counsel’s decision-
making narrowly focused on the potential suppression issue. That is, like Frazier,
trial counsel did not testify about how the two of them discussed Frazier’s options
leading up to the pleas, regarding the strengths and weaknesses of the available
incriminating or exculpatory evidence (including the confession), available
defenses, and the inducements in the State’s plea offer.9

that there was any contingency attached to the offer, and Frazier’s trial counsel testified that there
was no contingency of the type referred to by the circuit court. Frazier now makes a brief
argument challenging this particular finding as speculative, but he does not develop an argument
that, even if this particular finding was clearly erroneous, this supports Frazier’s prejudice
argument in some manner.
9
Frazier’s position regarding the significance of the strength of the State’s case rests on
an unstated but inaccurate premise. The unstated premise is that he has requested plea
withdrawal based on a Bangert challenge related to a plea defect, when his actual request is for
plea withdrawal based on ineffective assistance of trial counsel not related to a plea defect.
Frazier is correct in observing that a defendant who prevails on a Bangert motion and establishes
a denial of a relevant constitutional right in the course of a plea hearing is entitled to plea
withdrawal as “a matter of right.” State v. Van Camp, 213 Wis. 2d 131, 139, 569 N.W.2d 577
(1997) (citing Bangert, 131 Wis. 2d at 283). However in contrast, as our supreme court has
explained, in a case such as this we apply the standards that we cite above, under which Frazier
carries the burden of showing that withdrawal of his plea is required to avoid manifest injustice
(continued)

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No. 2019AP2120-CR

¶32 Frazier contends that there is no “requirement” that he “needed” to
testify at the Machner hearing “about the relative merits of the State’s evidence
against him or how he evaluated his options.” This contention is academic at best,
given the fact that there is a requirement that he must affirmatively prove
prejudice and that he bears the burden to show that the circuit court’s findings of
fact were clearly erroneous.

¶33 Thus, for example, entirely missing from Frazier’s Machner hearing
testimony was any accounting for how, at the time he was deciding whether to
accept the plea offer, he viewed the fact that the offer would allow him to avoid
the risk of a conviction that carries a mandatory minimum sentence of 25 years of
initial confinement, as a consequence of the State dropping the initially filed child
sexual assault charge under WIS. STAT. § 948.02(1)(b). See WIS. STAT.
§ 939.616(1r) (court “shall impose” prison confinement of 25 years following a
conviction for a violation of § 948.02(1)(b)). Further, both § 948.02(1)(b) and
§ 948.02(1)(e) are defined as Class B felonies, with maximum sentences of 60
years, and thus his maximum exposure was reduced substantially. See WIS. STAT.
§ 939.50(3)(b) (60 year maximum for Class B felony).10

based on his proving both prongs of the ineffective assistance test. See State v. Cain, 2012 WI
68, ¶¶21, 32 n.8, 342 Wis. 2d 1, 816 N.W.2d 177. Put differently, the principle stated in Van
Camp—that when a defendant “has established a denial of his constitutional rights, the trial court
should not consider whether the outcome of a case will likely change,” Van Camp, 213 Wis. 2d
at 153—does not change the rule that a defendant claiming ineffective assistance of counsel must
show the probability of a different outcome. Therefore, Frazier is wrong when he argues that the
strength of the State’s case absent the confession is not relevant to the analysis of whether Frazier
has shown prejudice.
10
To clarify, it may be debatable from an objective viewpoint whether the fact that the
State was offering to reduce the potential additional maximum exposure and to drop an additional
child sexual assault charge could reasonably have been significant to Frazier, given the remaining
child sexual assault charge and remaining very long maximum exposure. However, there can be
(continued)

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No. 2019AP2120-CR

¶34 In a similar vein, Frazier failed to testify about how he viewed the
facts that, at trial, the State would successfully have been able to offer as evidence
the recording of the alleged victim’s incriminating statement under WIS. STAT.
§ 908.08; the physical evidence in the form of the alleged bloodstain; and,
regarding the alleged physical abuse, the testimony of the teacher. Frazier does
not attempt to argue, nor could he, that without the confession as evidence the
State did not have evidence that a jury could have relied on to find him guilty
beyond a reasonable doubt on all elements of the charged crimes. In sum, in
assessing the veracity of Frazier’s completely unexplained assertion that he would
have gone to trial if he had been aware of a viable suppression motion, the circuit
court was entitled to consider as context the obvious incentives for Frazier to
accept a plea offer that eliminated the risk of conviction on the evidence available
to the State and a mandatory minimum 25-year sentence, and the fact that
Frazier’s testimony failed to account for that substantial inducement.

CONCLUSION

¶35 For all these reasons, we conclude that Frazier failed to show
prejudice resulting from that assumed deficient advice and therefore he has not
established ineffective assistance of trial counsel.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

no question that it should have been a substantial inducement to Frazier to no longer face
potential conviction on a charge with a mandatory minimum sentence of 25 years.

16